Midgett v. StateMidgett v. State
Lead Opinion
This child abuse case resulted in the appellant’s conviction of first degree murder. The sole issue on appeal is whether the state’s evidence was sufficient to sustain the conviction. We hold there was no evidence of the “. . . premeditated and deliberated purpose of causing the death of another person . . .” required for conviction of first degree murder by
The facts of this case are as heart-rending as any we are likely to see. The appellant is six feet two inches tall and weighs 300 pounds. His son, Ronnie Midgett, Jr., was eight years old and weighed between thirty-eight and forty-five pounds. The evidence showed that Ronnie Jr. had been abused by brutal beating over a substantial period of time. Typically, as in other child abuse cases, the bruises had been noticed by school personnel, and a school counselor as well as a SCAN worker had gone to the Midgett home to inquire. Ronnie Jr. would not say how he had obtained the bruises or why he was so lethargic at school except to blame it all, vaguely, on a rough playing little brother. He did not even complain to his siblings about the treatment he was receiving from the appellant. His mother, the wife of the appellant, was not living in the home. The other children apparently were not being physically abused by the appellant.
Ronnie Jr.’s sister, Sherry, aged ten, testified that on the Saturday preceding the Wednesday of Ronnie Jr.’s death their father, the appellant, was drinking whiskey (two to three quarts that day) and beating on Ronnie Jr. She testified that the appellant would “bundle up his fist” and hit Ronnie Jr. in the stomach and in the back. On direct examination she said that she had not previously seen the appellant beat Ronnie Jr., but she had seen the appellant choke him for no particular reason on Sunday nights after she and Ronnie Jr. returned from church. On cross-examination, Sherry testified that Ronnie Jr. had lied and her father was, on that Saturday, trying to get him to tell the truth. She said the bruises on Ronnie Jr.’s body noticed over the preceding six months had been caused by the appellant. She said the beating administered on the Saturday in question consisted of four blows, two to the stomach and two to the back.
On the Wednesday Ronnie Jr. died, the appellant appeared at a hospital carrying the body. He told hospital personnel something was wrong with the child. An autopsy was performed, and it showed Ronnie Jr. was a very poorly nourished and underdeveloped eight-year-old. There were recently caused bruises on the lips, center of the chest plate, and forehead as well as on the back part of the lateral chest wall, the soft tissue near the spine, and the buttocks. There was discoloration of the abdominal wall and prominent bruising on the palms of the hands. Older bruises were found on the right temple, under the chin, and on the left mandible. Recent as well as older, healed, rib fractures were found.
The conclusion of the medical examiner who performed the autopsy was that Ronnie Jr. died as the result of intra-abdominal hemorrhage caused by a blunt force trauma consistent with having been delivered by a human fist. The appellant argues that in spite of all this evidence of child abuse, there is no evidence that he killed Ronnie Jr. having premeditated and deliberated causing his death. We must agree.
It is true that premeditation and deliberation may be found on the basis of circumstantial evidence. That was the holding in House v. State,
The very manner in which the deadly weapons were used was sufficient to justify the jury in finding that whoever killed Jones used the weapons with a deliberate purpose to kill. Jones’ body was perforated three times through the center with bullets from a pistol or rifle, and was also horribly mutilated with a knife. The manner, therefore, in which these deadly weapons were used tended to show that the death of Jones was the result of premeditation and deliberation.
While a fist may be a deadly weapon, the evidence of the use of the fist in this case is not comparable to the evidence in House v. State, supra, and Weldon v. State, supra, where there was some substantial evidence consisting of other circumstances that the appellant who dumped the apparently immobile body in the water and walked away and the appellant who wielded the deadly weapons intended and premeditated that death occur. Nor do we have in this case evidence of any remark made or other demonstration that the appellant was abusing his son in the hope that he eventually would die.
The annotation at
Premeditation which also may be inferred from the facts and circumstances surrounding the killing, need not long be deliberated upon, but may occur merely an instant before the act. [Citation omitted.] It is clear from the facts adduced at trial regarding the burning and beating of the child that the jury could well have inferred that his killing was perpetrated purposely and with premeditated malice. [384 N.E.2d at 1024 ]
No explanation is given for the quantum leap from “the facts,” horrible as they were, to the inference of premeditation. We made the same error in Burnett v. State,
Premeditation, deliberation and intent may be inferred from the circumstances of the case, such as the weapon used and the nature, extent and location of the wounds inflicted . . . . [T]he weapon used was a fist which struck the abdomen with such force as to rupture the colon. The child sustained fingernail scratches, four broken ribs, and other internal damage, as well as numerous bruises due to blows with a fist all over his body. The required mental state for first degree murder can be inferred from the evidence of abuse, which is substantial. [287 Ark. at 162-163 ,697 S.W.2d at 98 ]
The problem with these cases is that they give no reason, like the reasons found in House v. State, supra, and Weldon v. State, supra, to make the inference of premeditation and deliberation.
In Simmons v. State,
There is no testimony of any witness, aside from the testimony of appellant in open court and his written confession, from which the jury could have found the existence of premeditation and deliberation. Neither do we find any circumstance which amounts to substantial evidence upon which a finding of premeditation and deliberation could be based. Consequently we are led to conclude that the jury must have resorted to speculation rather than substantial evidence in arriving at a verdict of murder in the first degree. [227 Ark. at 110-111 ,305 S.W.2d at 120 ]
The appellant argues, and we must agree, that in a case of child abuse of long duration the jury could well infer that the perpetrator comes not to expect death of the child from his action, but rather that the child will live so that the abuse may be administered again and again. Had the appellant planned his son’s death, he could have accomplished it in a previous beating.
In this case the evidence might possibly support the inference that the blows which proved fatal to Ronnie Jr. could have been struck with the intent to cause his death developed in a drunken, misguided, and overheated attempt at disciplining him for not having told the truth. Even if we were to conclude there was substantial evidence from which the jury could fairly have found the appellant intended to cause Ronnie Jr.’s death in a drunken disciplinary beating on that Saturday, there would still be no evidence whatever of a premeditated and deliberated killing.
In Ford v. State,
A clear exposition of the premeditation and deliberation requirement which separates first degree from second degree murder is found in 2 W. LaFave and A. Scott, Jr., Substantive Criminal Law § 7.7 (1986):
Almost all American jurisdictions which divide murder into degrees include the following two murder situations in the category of first degree murder: (1) intent-to-kill murder where there exists (in addition to the intent to kill) the elements of premeditation and deliberation, and (2) felony murder where the felony in question is one of five or six listed felonies, generally including rape, robbery, kidnapping, arson and burglary. Some states instead or in addition have other kinds of first degree murder.
(a) Premeditated, Deliberate, Intentional Killing. To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words “premeditate” and “deliberate” as they are used in connection with first degree murder. Perhaps the best that can be said of “deliberation” is that it requires a cool mind that is capable of reflection, and of “premeditation” that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.
It is often said that premeditation and deliberation require only a “brief moment of thought” or a “matter of seconds,” and convictions for first degree murder have frequently been affirmed where such short periods of time were involved. The better view, however, is that to “speak of premeditation and deliberation which are instantaneous, or which take no appreciable time,. . . destroys the statutory distinction between first and second degree murder,” and (in much the same fashion that the felony-murder rule is being increasingly limited) this view is growing in popularity. This is not to say, however, that premeditation and deliberation cannot exist when the act of killing follows immediately after the formation of the intent. The intention may be finally formed only as a conclusion of prior premeditation and deliberation, while in other cases the intention may be formed without prior thought so that premeditation and deliberation occurs only with the passage of additional time for “further thought, and a turning over in the mind.” [Footnotes omitted.]
The evidence in this case supports only the conclusion that the appellant intended not to kill his son but to further abuse him or that his intent, if it was to kill the child, was developed in a drunken, heated, rage while disciplining the child. Neither of those supports a finding of premeditation or deliberation.
Perhaps because they wish to punish more severely child abusers who kill their children, other states’ legislatures have created laws permitting them to go beyond second degree murder. For example, Illinois has made aggravated battery one of the felonies qualifying for “felony murder,” and a child abuser can be convicted of murder if the child dies as a result of aggravated battery. See People v. Ray,
All of this goes to show that there remains a difference between first and second degree murder, not only under our statute, but generally. Unless our law is changed to permit conviction of first degree murder for something like child abuse or torture resulting in death, our duty is to give those accused of first degree murder the benefit of the requirement that they be shown by substantial evidence to have premeditated and deliberated the killing, no matter how heinous the facts may otherwise be. We understand and appreciate the state’s citation of Burnett v. State, supra, but, to the extent it is inconsistent with this opinion, we must overrule it.
The dissenting opinion begins by stating the majority concludes that one who starves and beats a child to death cannot be convicted of murder. That is not so, as we are affirming the conviction of murder; we are, however, reducing it to second degree murder. The dissenting opinion’s conclusion that the appellant starved Ronnie Jr., must be based solely on the child’s underdeveloped condition which could, presumably, have been caused by any number of physical malfunctions. There is no evidence the appellant starved the child. The dissenting opinion says it is for the jury to determine the degree of murder of which the appellant is guilty. That is true so long as there is substantial evidence to support the jury’s choice. The point of this opinion is to note that there was no evidence of premeditation or deliberation which are required elements of the crime of first degree murder. The dissenting opinion cites two child abuse cases in which first degree murder convictions have been affirmed. One is Morris v. State, supra, with which we dealt earlier in this opinion. The other, is Lindsey v. State,
In this case we have no difficulty with reducing the sentence to the maximum for second degree murder. Dixon v. State,
Affirmed as modified.
Lead Opinion
Supplemental Opinion on Denial of Rehearing
June 29, 1987
1. Appeal & error — no basis for granting rehearing. — Where appellant only reargues a question raised on appeal he presents no basis for granting rehearing. [Ark. Sup. Ct. R. 20(g).]
2. Criminal law — first degree murder. —
3. Appeal & error — insufficient proof to support jury’s VERDICT OF A HIGHER OFFENSE — APPELLATE COURT MAY REDUCE sentence. — If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter and the appellate court, in its discretion, may reduce the sentence to that prescribed for the lesser offense.
Petition for Rehearing; denied.
The appellant only reargues the question whether there was evidence of premeditation and deliberation and thus presents no basis for granting rehearing. Arkansas Supreme Court and Court of Appeals Rule 20(g). However, both parties have pointed out an error of law in our opinion. We stated that the maximum sentence for first degree murder is forty years imprisonment. We should have said the maximum term of years is forty. The statute provides first degree murder is a class Y felony,
The appellant argues, in his response to the appellee’s request for rehearing, that we should grant a new trial so that a jury may set the sentence for second degree murder. We decline to do so, as we regard the maximum sentence to be supported by the evidence in the record, and as we said in Collins v. State, 261
Ark. 195,
If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter (and this court, in its discretion, may reduce the sentence to that prescribed for the lesser offense). Caton v. State,252 Ark. 420 ,479 S.W.2d 537 [1972]. This rule applies in murder cases as well as for other felonies. Simpson v. State,56 Ark. 8 ,19 S.W. 99 [1892]. [261 Ark. at 209 ,548 S.W.2d at 114 .]
The sentence has been reduced to one within the range prescribed for second degree murder, and we find that sentence to be justified by the evidence in the record.
Rehearing denied.
Dissenting Opinion
dissenting. Simply put, if a parent deliberately starves and beats a child to death, he cannot be convicted of the child’s murder. In reaching this decision, the majority overrules a previous unanimous decision and substitutes its judgment for that of the jury. The majority has decided it cannot come to grips with the question of the battered child who dies as a result of deliberate, methodical, intentional and severe abuse. A death caused by such acts is murder by any legal standard, and that fact cannot be changed—not even by the majority. The degree of murder committed is for the jury to decide—not us.
Convictions for murder resulting from child abuse have become more common in our courts. That is probably because such cases are being reported more often and prosecutors are more apt to seek retribution.
The decision of what charge to file in a homicide case rests with the prosecuting attorney. He has the duty to prove the charge. The decision of whether the state has proved the crime rests with the jury. Our role is only to determine if substantial evidence exists to support the verdict.
Sometimes the facts may warrant a charge of second degree murder. We have affirmed convictions for second degree murder in two such cases. Boone v. State,
Whether the particular acts of child abuse amount to first degree murder depend on the particular facts and circumstances in each case. Just as in any other murder case, the state must prove each element of the crime. For a first degree murder conviction, the state must prove premeditation and deliberation.
We have never held motive relevant to murder, nor do we even try to look into the warped minds that commit murder to make their acts rational. Parker v. State,
In this case the majority, with clairvoyance, decides that this parent did not intend to kill his child, but rather to keep him alive for further abuse. This is not a child neglect case. The state proved Midgett starved the boy, choked him, and struck him several times in the stomach and back. The jury could easily conclude that such repeated treatment was intended to kill the child.
In Burnett v. State, supra, the state chose to seek a first degree murder conviction. The child was killed in an extremely horrible way. He was malnourished and dehydrated, bruises on his face and upper and lower extremities, four broken ribs, a ruptured colon, and abrasions. His life was made intolerable and insufferable until at last a blow killed him. The parents, who could not have been unaware or innocent, were found guilty of killing him, which they did. We unanimously upheld that jury verdict. It was no “quantum leap” on our part (whatever that means), just a decision based on the facts and the law. The majority unanimously joined in the Burnett decision.
The facts in this case are substantial to support a first degree murder conviction. The defendant was in charge of three small children. The victim was eight years old and had been starved; he weighed only 38 pounds at the time of his death. He had multiple bruises and abrasions. The cause of death was an internal hemorrhage due to blunt force trauma. His body was black and blue from repeated blows. The victim’s sister testified she saw the defendant, a 30 year old man, 6’2” tall, weighing 300 pounds, repeatedly strike the victim in the stomach and back with his fist. One time he choked the child.
The majority is saying that as a matter of law a parent cannot be guilty of intentionally killing a child by such deliberate acts. Why not? Is it because it is inconceivable to rational people that a parent would intend to kill his own child? Evidently, this is the majority’s conclusion, because they hold the intention of Midgett was to keep him alive for further abuse, not kill him. How does the majority know that? How do we ever know the actual or subliminal intent of a defendant? “If the act appellant intended was criminal, then the law holds him accountable, even though such result was not intended.” Hankins v. State,
Undoubtedly, the majority could accept it if the child were murdered with a bullet or a knife; but they cannot accept the fact, and it is a fact, that this defendant beat and starved his own child to death. His course of conduct could not have been negligent or unintentional.
Other states have not hesitated to uphold a conviction for first degree murder in such cases. Morris v. State,
I cannot fathom how this father could have done what he did; but it is not my place to sit in judgment of his mental state, nor allow my human feelings to color my judgment of his accountability to the law. The law has an objective standard of accountability for all who take human life. If one does certain acts and the result is murder, one must pay. The jury found Midgett guilty and, according to the law, there is substantial evidence to support that verdict. That should end the matter for us. He is guilty of first degree murder in the eyes of the law. His moral crime as a father is another matter, and it is not for us to speculate why he did it.
I would affirm the judgment.